New border entry exceptions for holders of certain types of Work and Resident visas

On 8 October 2020 Immigration New Zealand (INZ) finally published the long awaited amendments to New Zealand’s border restriction policies to allow the holders of certain types of visas to return to New Zealand through the closed border. The amendment comes in force today, 9 October 2020.

To be eligible a person must:

• Have held an Entrepreneur, Work to Residence, or Essential Skills work visa (mid or higher skilled; or based on employment assessed as being paid at or above the median wage) when the person departed New Zealand; and
• Continue to hold a valid visa, or have applied for a further visa that allows them to work in the same job or operate the same business as when they were in New Zealand; and
• Have maintained their job or business while outside New Zealand and continue to hold that same job, or operate that same business; and
• Have departed New Zealand between 1 December 2019 and 9 October 2020; and
• Meet certain ‘time in’ New Zealand requirements.

Partners and dependent children can also be included if they currently hold, or held at the time of departing New Zealand, a visitor, work or student visa based on their relationship to the main applicant qualifying above. Any dependent children born on or after 1 December 2019 can also be included.

It is important to note that the requirement to ‘have held a visa when the person departed New Zealand’ is further qualified in that the visa they held on departure must have had an expiry date of:

• On or after 1 January 2021; or
• If before 1 January 2021, the person must have:
  • Submitted a further visa application on, or before, 9 August 2020; and
  • The further visa would allow the person to stay in New Zealand for at least 12 months; and
  • The visa would allow the person to work in the same position or operate the same business as per the conditions of the earlier visa

With respect to the ‘time in’ New Zealand requirement, INZ requires of the main applicant to demonstrate they were in New Zealand for either:

• At least 273 days in each of the two 12 month periods immediately preceding the date of their departure from New Zealand; or
• At least 273 days in the 12 month period immediately preceding the date of their departure from New Zealand and meet one of the following:
  • If the main applicant held an Entrepreneur work visa they operated a business at the time of departing New Zealand in accordance with the conditions of their visa, and have continued to operate the same business since departing New Zealand; or
  • Had one or more dependent children with them in New Zealand for at least 6 months of that 12 month period; or
  • Have parents or siblings who are 18 years or older, who are currently in, and who are ordinarily resident in New Zealand; or
  • Submitted an application for a resident visa on or before 9 August 2020.

In addition to the above, INZ have also published a further amendment to the border restriction policies for individuals who left New Zealand while holding a work visa (Essential Skills, Entrepreneur or Work to Residence visa) and who were granted a resident visa since departing New Zealand, but who have not been able to travel to New Zealand on the basis of that resident visa to ‘activate’ that resident visa.

Individuals will be eligible to apply for an exception to enter New Zealand via the closed border if they:

• Departed New Zealand between 1 December 2019 and 9 October 2020 (inclusive) and are currently outside of New Zealand;
• Were granted a resident visa after departing New Zealand;
• At the time of departing held an Essentials Skills (mid or higher skilled; or based on employment assessed as being paid at or above the median wage), Entrepreneur or Work to Residence visa;
• Continue to hold a current job (that would be within the conditions of that previous visa) or still operate a business; and
• Have a strong on-going connection to New Zealand

The same ‘time in’ New Zealand requirements (as discussed with respect to work visa holders above) will be applicable to resident visa holder applicants.

It should be abundantly clear from these very detailed requirements that INZ will only approve applications that clearly meet each of the published requirements. In essence, what we have here is a reversed engineered policy to make sure that only 850 main applicants can qualify. They have reviewed the total number of potential applicants and added detailed and restrictive qualifying criteria to make sure a pre-determined number can only qualify as that is the maximum number allowed under this new policy.

This is apparent also from an addendum INZ published with the amendments, stating that the Ministry of Business, Innovation and Employment (MBIE) must consult with the Minister of Immigration and/or other Ministers if more than 850 visas are likely to be granted to main applicants applying under these new exceptions. This is the safety valve if their math proves incorrect and there are far more than the 850 they think can actually qualify.

Anyone who considers that they are likely to meet these numerous requirements should strongly consider the option of having their circumstances assessed carefully by an immigration specialist. Even we find the criteria hard to apply. INZ will not allow any flexibility with respect to the requirements applicable to these exceptions because they don’t have any more capacity to work with.

The restrictive, detailed and in some instances bizarre qualifying criteria applied here really indicates what the main issue is; there is clearly insufficient capacity at MIQ to allow more people in and this reversed engineered policy algorithm is the best that can be achieved by INZ with what they have been given to work with.

This further ‘loosening’ of the entry criteria does not bode well for the economic recovery of the country if this is the best that can be done to open the door wider. The analogy here is that a water pistol has been given to INZ to control a house fire, and unless INZ (through the expansion of MIQ capacity) have more to work with there are very difficult times ahead in 2021 for New Zealand employers.

If you require assistance or guidance with an application, whether you are a migrant employee or employer, please reach out to us.